Pocket Docket: Supreme Court's New Season

Questions before the Supreme Court, which begins its new term Monday, include corporate political spending, dog-fighting videos, a cross in the desert -- and whether a more unified conservative bloc emerges.

On the Docket

This year, the court itself has had a makeover with the appointment of Justice Sonia Sotomayor. The justices reshuffled their swivel chairs to maintain a seating pattern based on seniority.

The court will also consider major arguments involving whether juvenile offenders can be sentenced to life without parole for crimes such as rape or robbery; whether a prosecutor can be sued for winning a conviction by procuring false testimony; and whether a state program to replenish eroded beaches for public use unconstitutionally deprives coastal property owners of their private ocean access.

The court also is considering whether to hear several other cases with broad implications, such as whether the Second Amendment right to self-defense, which the court first identified last year, limits state weapons regulations. The 2008 decision, a 5-4 vote, split along ideological lines.

Cases on First Amendment and Separation of Powers Top Agenda

U.S. v. Stevens

ENLARGE

Associated Press

Oct. 6

Can the government criminalize depiction of animal cruelty?

Congress banned such portrayals in 1999, but the law has led to just one prosecution, of a man who sold dogfight videos. An appeals court ruled the law violated free-speech protections. In its appeal to the Supreme Court, the government argues that like child pornography, depictions of animal cruelty can be banned because they contain no redeeming content and might fuel a market that encourages further harm to animals.

Salazar v. Buono

ENLARGE

Associated Press

Oct. 7

Does a cross erected in the Mojave National Preserve violate the Constitution's ban on government "establishment of religion"?

Congress voted to block removal of the cross by park officials, but an appeals court ruled that maintaining a Christian symbol on public property suggested an unconstitutional government endorsement. The Supreme Court will consider whether an individual can even bring a lawsuit like this before weighing whether the cross can remain.

Bilski v. Kappos

ENLARGE

Getty Images

Nov. 9

How closely must a business-method patent be tied to an actual device, as opposed to an abstract principle?

The Supreme Court in recent years has tightened patent standards. Now, the court will decide what the rules are for the growing number of "business method" patents. In this case, a lower court denied a patent for a commodities-trading strategy because it was neither "tied to a particular machine or apparatus" nor did it transform something "into a different state or thing."

Graham v. Florida; Sullivan v. Florida

ENLARGE

Associated Press

Nov. 9

Is a sentence of life without parole for juvenile offenders constitutional?

In 2005, the court ruled it unconstitutional to execute juvenile offenders. In these two cases, the justices consider whether it also violates the Eighth Amendment ban on "cruel and unusual punishments" to sentence a juvenile offender to life imprisonment without possibility of parole for crimes where no one dies, such as rape or robbery.

Free Enterprise Fund v. PCAOB

ENLARGE

Getty Images

Dec. 7

Is the Public Company Accounting Oversight Board constitutional under the separation of powers doctrine?

Members of the PCAOB are appointed by the Securities and Exchange Commission. A conservative advocacy group claims this structure is unconstitutional because the president doesn't appoint board members. The government argues that the constitutionality of such independent agencies long has been recognized by the courts.

U.S. v. Comstock

ENLARGE

Associated Press

Hearing date not set

Do federal prisons have the authority to hold inmates past their sentences out of fear they will violate state law?

A 2006 federal law allows the U.S. Bureau of Prisons to keep inmates in custody after completing their sentences if it deems them to be "sexually dangerous." A federal appeals court struck down the law as exceeding congressional powers because most sex offenses are state crimes, not federal.

The court's five conservatives voted together in that case and have begun paring back liberal precedents in others. But they have often failed to agree on the reasoning behind shared outcomes, issuing separate concurring opinions that differ in scope and stop short of fully overruling prior decisions the four liberals fought to preserve.

Some legal observers think the conservative majority may be ready to move more forcefully.

"I'm hopeful that the chief justice will demonstrate a willingness to overturn wrong precedent when the occasion for reconsidering the precedent is ripe," says Ed Whelan, president of the conservative Ethics and Public Policy Center and a former clerk for Justice Antonin Scalia.

In June, the conservatives seemed to suggest a new readiness to review case law with which they may disagree. They ordered a special Sept. 9 reargument in a relatively narrow campaign-finance case to address something broader than initially presented: whether to overrule precedents upholding state and federal limits on corporate political spending. A decision in the case, Citizens United v. Federal Election Commission, is pending.

Any new unanimity among conservatives won't change broader divisions with the liberal bloc, which has tended to be more cohesive.

"Last year, we had the most divisive Supreme Court term in modern history," says Tom Goldstein, co-chairman of the litigation practice at Akin Gump Strauss Hauer & Feld LLP and founder of scotusblog.com, a Web site that follows the Supreme Court.

As recently as the 2005 term, when Justice Samuel Alito succeeded Sandra Day O'Connor at midpoint, the court voted unanimously 52% of the time. According to Mr. Goldstein, just 33% of last term's decisions were unanimous.

A big question among court watchers like Mr. Goldstein: "Is that an anomaly or are we settling into a pattern of a bitterly divided court?"

Some say the latter. Erwin Chemerinsky, dean of the University of California, Irvine, law school who has argued several liberal causes at the Supreme Court, says conservatives such as Chief Justice John Roberts and Justice Alito may have at first taken relatively tentative steps because during their confirmation processes they "pledged fidelity to the precedents." Newcomers no longer, the Bush appointees may feel more comfortable taking bolder steps, he says.

A sign could come in the term's first week, when the court considers a lawsuit seeking removal of an eight-foot-tall cross in California's 1.6 million-acre Mojave National Preserve. Erected in 1934 by the Veterans of Foreign Wars, the cross periodically has been replaced by local residents, most recently in 1998. In 1999, the National Park Service rejected a request to allow placement of a Buddhist shrine in the preserve and decided to remove the cross as well.

Congress then barred the park service from touching the cross, and years of litigation and legislation followed. In 2007, a federal appeals court in San Francisco rejected the latest congressional attempt in 2004 to maintain the cross by transferring a one-acre parcel on which it sits to the VFW in return for a different parcel of five acres.

The court may not address the core question of whether congressional efforts to maintain the cross run afoul of the First Amendment, which bars a government "establishment of religion." Instead, the court could decide that there was no standing, or right to sue, over the issue at all.

It could find that "nobody's injured by the presence of a cross on government property," so nobody can sue to have it removed, says Mr. Chemerinsky. That effectively would end the judiciary's role in deciding the legality of religious symbols on government property.

Steven Calabresi, a law professor at Northwestern University, doubts that the court will take such dramatic moves when it hears the case.

"The court under Chief Justice Roberts has so far sought to distinguish precedents rather than overrule them when it can," says Mr. Calabresi, board chairman and co-founder of the conservative Federalist Society. "I think they'll decide the case narrowly." The justices could protect the cross and limit similar challenges by extending a line of recent decisions, he says.

In one such 2005 decision, Justice Stephen Breyer essentially directed the government to do the least religiously provocative thing -- leaving in place a monolith that for decades had sat without controversy in a Texas park, but barring county officials in Kentucky from installing new displays to declare fealty to biblical teaching.

Still, Mr. Calabresi says that "reconsidering past cases that seem to be wrong is more warranted in some areas than others." The campaign finance case, Citizens United, is one, he says, because it involves "core political speech."

Another case that may provoke stronger action, he says, involves a challenge to the Public Company Accounting Oversight Board, established by the Sarbanes-Oxley Act of 2002. Mr. Calabresi calls it "the most important separation-of-powers case in the last 10 years."

The board, a private nonprofit corporation, supervises accounting firms. Its five members are appointed by and answerable to the Securities and Exchange Commission, rather than the president.

A conservative advocacy group challenging the law maintains that the structure undermines the "unitary executive," a constitutional theory that contends that executive power can be wielded only by the president, or through subordinates he can remove at will.

The high court has never fully embraced the theory, and in prior decades upheld the constitutionality of independent agencies like the SEC, whose members generally can be removed only for cause. But conservatives like Justice Alito, an adherent of unitary executive theory, could use the case to revisit precedent they feel improperly diminishes presidential authority.

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